Relationship between Psychology and the Law

Forensic  –  Psychology  and  The  Law   Howitt (2009) – “The relationship between psychology and the law has not always been an easy one” Discuss. Concept of mental illness is perceived in different ways between the professions of psychology and law. Critically evaluate the complex relationship between mental disorder and crime. How can we reconcile the "uneasy alliance" that often exists between the disciplines of psychology and law in relation to crime?

“The profession of law and psychology share little in terms of how they conceptualise their subject matter – people” (Howitt, 2009). Some would tend to disagree with this statement, suggesting that psychology’s goal is to understand behavior and law’s goal to regulate it, with both fields making assumptions about what causes people to act the way they do. The causes and motivations of behaviour are central to both, nevertheless the two professions are essentially split by the way they construe human nature, and this often causes tension between the two disciplines. The law, whether civil or criminal, generally assumes free will and emphasises individual responsibility in contrast to the tendency by a number of psychological theories to highlight unconscious and uncontrollable forces operating to determine aspects of individual’s behaviour. The central tenet of such confusion can be reduced to the concept of mental illness and its association with crime. Almost all of the world's legal systems recognise an exception to criminal responsibility when, as a result of mental illness, defendants fail to appreciate the wrongfulness of their actions (Heller & Dubber, 2011). This exception, which in many jurisdictions traces its origins to the “M'Naghten Rules”, is mainly uncontroversial (Erickson, 2010, p. 69). It rests on the assumption that punishment is morally justified only if, at the time of the act, the defendant was capable of choosing whether to do wrong. Defendants without this capacity may be confined for public protection, of course, but retributive sanctions are not warranted (Morse, 1985). Viewed from a more instrumentalist perspective, punishing such persons is wasteful because the prospect of sanctions cannot deter them (Pinker, 2002). A question that has long vexed jurists, however, is whether to extend M'Naghten's moral and instrumental logic to other situations where the defendant was incapable of choice. In particular, there is no juristic consensus on whether to excuse mentally disordered

persons who understand the wrongfulness of their actions but are incapable of resisting an impulse to commit them. This is one particular example of how the relationship between psychology and the law is complex, and this essay serves to delineate this example and provide a window of opportunity by which the uneasy alliance can be reconciled. Impulsivity as a brain abnormality Psychologists (particularly cognitive neuroscientists) have long purported that there is an association between brain abnormalities, especially in the frontal lobes, and impulsivity. Case studies have suggested that lesions can cause dramatic changes in behaviour, including heightened propensities for impulsivity and violent, criminal, and other anti-social conduct (e.g., Ackerly, 1964; Bechara et al., 2000; Burns & Swerdlow, 2003). Violent and aggressive persons also report a higher incidence of brain trauma than controls (Brower & Price, 2001). Modern neuroimaging techniques have revealed structural differences between the brains of controls and various populations with behavioural markers of impulsivity (e.g., Antonucci et al., 2006; Volkow & Tancredi, 1987). For example, impulsive persons have been shown to display reduced hippocampal, vmPFC and dorsolateral prefrontal cortex (dlPFC) gray matter volumes compared to controls (Brunner et al., 2010; Zetzsche et al., 2007). In an early and well-known study, Raine et al. (1998) found that, compared to controls, impulsive murderers displayed lowered prefrontal activity and heightened subcortical activity. The behavioural manifestations of this imbalance have been studied in experimental settings. For example, when confronted with a choice between smaller, immediate rewards and much larger deferred rewards, people with frontal lobe damage typically prefer the former (Lezak, 1995; Yechiam et al., 2005). It does not follow, however, that neuroscience can tell us whether defendants are morally or legally responsible for their actions (Morse, 2006). As Aharoni and colleagues (2008), have put it, “there is not, and will never be, a brain correlate of responsibility.” While informed by empirical knowledge, responsibility is a normative standard (Sasso, 2009; Waldbauer & Gazzaniga, 2001). But science does suggest that some people, in some situations, may find it next to impossible to control their behaviour, even if they know it is wrong. Given the prevailing theories of legal responsibility, this raises the question of whether the punishment of such persons is either just or efficient (Sasso, 2009). Cognitive impairment typically stems from major mental illnesses (such as schizophrenia or bipolar disorder) that manifest with obvious, tangible symptoms (such as paranoid fantasies or command hallucinations) (Donohue et al., 2008). In the forensic context, these conditions are typically easy to diagnose and difficult to feign. That said, it may be much more difficult to assess whether defendants' mental illnesses rendered them incapable of appreciating the wrongfulness of their conduct (Slobogin, 2006).

It is not evident that impulsivity is so clinically nebulous that courts cannot determine claims with reasonable reliability. The legal standard for volitional control should be defined as a total inability to exert control in the circumstances. Given such a high threshold, and given the claimant's onus of proof, the available scientific and other information should be sufficient to allow decision makers to distinguish between deserving and undeserving claims (Redding, 2006). As shown above, substantial progress has been made in discovering the neural correlates of impulsivity. It is true that no single diagnostic or evaluative tool (including brain imaging and neuropsychological testing) can establish whether a defendant was incapable of control at the relevant moment (Blume & Paavola, 2011; Mobbs et al., 2007; Reeves et al., 2003). But used in combination, these techniques (along with all of the other evidence in the case) can provide an adequate basis for the court's decision (Baskin et al., 2007). And while there has been a dearth of research on the question, studies have suggested that clinicians are able to measure control as accurately as cognitive impairment (Rogers, 1987). This research has led some to urge the abandonment of retributive models of responsibility (Greene & Cohen, 2004; Kirchmeier, 2004; Snead, 2007). Such calls, however, are politically infeasible and likely incompatible with our evolutionarily based and neurologically grounded instinct for proportional, retributive punishment (Erickson, 2010). For the foreseeable future, the vast majority of offenders with impulse control deficits will continue to be found responsible for their actions (Goodenough, 2004; Mobbs et al., 2007). Of course, evidence of impulsivity may be relevant to other aspects of criminal liability and punishment. In many jurisdictions, deficits in impulse control may be proffered to support claims of diminished responsibility or in mitigation of punishment (Simon & Ahn-Redding, 2006). But a total exemption from responsibility should require a total incapacity to control conduct in the circumstances. Despite or because of the path described above, several cautionary notes must be provided. The first such note is that one must be on guard against “brain overclaim syndrome”, a condition identified by Stephen Morse (2006). It is a paradox that it is a duty of scientists to present research findings to the public while, at the same time, the public over-accepts the importance of such findings and even prematurely grants the status of sheer truth to some. Recent studies have shown, for example, that the results of a simple experiment in cognitive psychology will be more positively evaluated and considered important if a brain scan is included in the reporting of those results (Weisberg et al., 2008). Therefore using scientific evidence in court such as brain imaging techniques should be approached with caution. Seeking to attribute crimes to brain abnormalities alone ignores the critical effect that life experiences and the context of the crime scene has on an individual’s behaviour. Hence, it is

imperative that the criminal justice system does not deviate to the opposite extreme and assign undue influence to biological factors in the development of criminal behaviour. Neuroimaging is just one piece of evidence the forensic expert relies on in determining the extent of neuropathology and mental illness. Imaging studies will not be relevant to every defence and, if utilized, should be only a component of the multi-faceted scientific data presented.